In Board of Education, Island Trees Union Free School District No. 26 v. Pico (1982), for the first and only time, the U.S. Supreme Court addressed the removal of books from public schools’ libraries. At issue was whether a school board’s decision to remove nine books from school libraries should have been limited by the First Amendment. Although the decision in Pico was a fractured one, with seven of the nine Justices writing separate opinions, it does provide guidance for the removal of library books. Under Pico’s plurality, the motivation for the book removal is the central factor in determining constitutionality. If the purpose of removing books is purely to eliminate diversity of ideas for nationalistic, political, or religious reasons, then the action is impermissible. However, if board officials can point to a nondiscriminatory reason for removing books, such as vulgarity or educational unsuitability, then they are granted wide discretion in removing public school library books.

Facts of the Case

Pico arose when five students in New York sought injunctive and declaratory relief in Pico by invoking 42 U.S.C. § 1983, claiming that their school board violated their First Amendment rights. After initially attempting to ban the books because they were “anti- American, anti-Christian, anti-Semitic and just plain filthy,” the board, on recommendation of the superintendent, appointed a review committee, which advised that five of the books at issue be kept in the library. The board overruled the committee’s recommendation, giving no explanation of its actions, and banned all but two of the books. A federal trial court granted the board’s motion for summary judgment on the basis that its motivation stemmed from a “conservative educational philosophy,” which was permissible in light of the wide discretion usually given to school boards. Subsequently, the Second Circuit reversed and remanded in pointing out that there was an issue of fact regarding the board’s motives.

The Court’s Ruling

On further review at the U.S. Supreme Court, Justice William J. Brennan wrote for a plurality. He emphasized the narrow nature of the Court’s holding, limiting it only to the removal of library books and excluding mandatory readings in course curricula and decisions regarding the acquisition of library books. Justice Brennan reasoned that local school boards should have substantial discretion in their curriculum choices and that there is an important interest in protecting nationalistic, political, and social values of schoolchildren. Even so, he noted, citing Court precedent, students retain some First Amendment rights even at school, and those rights were fully implicated in the case at bar. Placing significant value both on the role that school libraries play in the valuable and freechoice discovery of knowledge and on the right that schoolchildren have in access to information, the Court held that the board should not have been able to suppress the particular ideas within books, simply because it did not agree with them. At the same time, the Court created an exception for the removal of library books with “pervasive vulgarity” or those that are educationally unsuitable. Insofar as the board appointed, but did not follow the recommendation of a review committee and other district employees, the Court was of the opinion that there was a possibility that it acted with unconstitutional intent in removing the books. Accordingly, the plurality affirmed the order of the Second Circuit and remanded the dispute for further findings of fact. There is no later judicial record of any such actions, suggesting that the parties reached an out-of-court settlement. Four justices wrote separate individual dissents in Pico, expressing outrage that the plurality recognized a right to receive information. The dissenters also feared that the plurality’s subjective standard would not provide sufficient guidance to lower courts and school boards. In addition, Justice Warren Burger emphasized that because school boards are closer to the community and parents than are courts, they are better equipped to make decisions of removal, and courts should grant them wide discretion. Pico does provide some guidance for school boards that wish to remove books from their libraries. First, if educational officials have procedures for removing library books, then they should follow them closely. Second, boards must ensure that the motivations for removing books are in accord with Pico, meaning that while they can exclude books based on vulgarity or educational unsuitability, they cannot act purely from nationalistic, political, or religious values.

Emily Richardson

See also First Amendment; Tinker v. Des Moines Independent Community School District; United States v. American Library Association Further Readings

Peltz, R. J. (2005). Pieces of Pico: Saving intellectual freedom in the public school library. Brigham Young University Education and Law Journal, 2,103–158.